CITATION: Benson v. Dekker, 2024 ONSC 1385

DIVISIONAL COURT FILE NO.: 02/23

DATE: 20240308

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Backhouse, D.L. Corbett, O’Brien JJ.

BETWEEN:

Kent Benson and Agnes Benson

Applicants (Respondents in Appeal)

– and –

Karen Dekker and Rien Dekker

Respondents (Appellants)

Robert W. Scriven for the Applicants (Respondents in Appeal)

Alexandra Ferrier for Respondents (Appellants)

HEARD: Brampton: March 4, 2024

Backhouse J.

Reasons for Decision

Overview

[1] The Appellants (“the Dekkers”) appeal an order of the Normal Farm Practices Review Board (“the Board”) made November 30, 2022 (“the Decision”) which allowed the application of the Respondents (“the Bensons”) that they were directly affected by an odour disturbance arising from the Dekkers’ top loading manure tank. The Board found that the manure tank was significantly non-compliant with Minimum Distance Separation (“MDS”) guidelines of the Ontario Ministry of Agriculture, Food and Rural Affairs (“OMAFRA”) and thus not a normal farm practice under the Farming and Food Production Protection Act, 1998, S.O 1998, Ch.1 as amended (the “Act”). The Board ordered the Dekkers to cease using the tank effective in 24 months.

[2] The Dekkers submit that the Board erred by relying solely upon an MDS calculation as the cause of the disturbance and failed to analyze whether the storage of manure was a normal farm practice which even if compliant, would not satisfy the complaints about the alleged odour. They argue that the Board focused upon the location of the tank and the admitted miscalculation of the MDS which was the fault of the Township rather than whether there was a disturbance. They submit that the Board did not properly weigh the evidence and unreasonably favoured the Bensons’ oral evidence over the evidence provided by Mr. Dekker and John MacVicar. They requested that the decision of the Board be set aside, and the application of the Bensons in the first instance be dismissed.

[3] For the reasons set out below, the appeal is dismissed. In summary, the Board correctly analyzed the five issues required to be determined. It was open to the Board to find on the evidence that the Bensons were directly affected by an odour disturbance arising from the Dekkers’ top loading manure tank and its location. The Board was in the best position to evaluate and determine the weight to be given to the evidence. It is not the role of this court to reweigh and reassess the evidence before the Board. The findings are amply supported by the reasons.

[4] The Board was not required to analyze whether, even if the Dekkers complied with the MDS guidelines, the Bensons’ complaints about an odour would continue. There are no errors of law and no palpable and overriding errors of fact. In concluding that the manure pit is not a normal farming practice, the Board did not err in finding the determining factor to be that the manure tank is too close by a substantial distance of 166 feet.

Background

[5] The Dekkers are dairy farmers in the County of Wellington, Ontario. The Bensons are their neighbours directly facing the Dekkers’ farm across Highway 6 in Kenilworth, Ontario. They farm cash crops. The Bensons’ farm is to the east of the Dekkers’ farm. In 2016, the Dekkers built a new manure storage tank on their property, pursuant to the required process, at a cost of around $200,000. The Bensons noticed a strong manure smell on their property in the spring of 2017 and reached out to the Township of Wellington North (“Township”), and the Ontario Ministry of Agriculture, Food, and Rural Affairs (“OMAFRA”). Negotiations ensued during which the Bensons learned that the manure tank was built 48.82 metres (166 feet) too close to their house as required by MDS Guidelines. The Township had provided the Dekkers with the miscalculation, which they used in planning their manure pit.

[6] In collaboration with an official from OMAFRA, Mr. Dekker testified that they washed out all concrete powder as they originally thought an odour might be from the chemicals in the concrete mixing with the manure. They then tried putting an additive into the manure pit which he believed reduced the odour significantly.

[7] As the negotiations and odour mitigation efforts were not successful in resolving the complaint, the Bensons brought a Normal Farm Practices Application.

Evidence at the hearing

[8] At the hearing, Agnes Benson and Kent Benson testified as to the strong manure smell. Mr. Benson testified that as a farmer, he understands that there are manure smells sometimes, but this odour is all the time from March to November when prevailing westerly wind blows the odour towards their residence. He said there was no problem with manure odours from the previous owners who had the same number of cows being milked as the Dekkers. In the spring of 2017, after the Dekkers built their open manure tank in 2016, they started getting a very strong manure odour constantly and not just when manure is being spread on the fields.

[9] Mr. Benson filed as exhibits:

(a) a letter sent to him from Darren Jones, the Township of Wellington North’s Chief Building Officer that acknowledges a mistake was made regarding the MDS calculation; (Exhibit 3);

(b) a MDS Report on the Dekkers’ barn and manure storage tank prepared by Brian Corley at the Township of Wellington North in 2016 that contains the MDS error and a letter sent to Mr. Benson by Daniel Ward, P.Eng. from OMAFRA that sets out the proper setback requirements; ( both Exhibit 5);

(c) aerial photographs of the properties that had these distances in feet and metres; (Exhibit 1a and 1b); and

(d) an aerial photograph for the property south of him belonging to the MacVicars. (Exhibit 1c).

[10] Mr. Benson testified that the manure tank is 160 feet too close to his residence; it is 656 feet from his residence and it should be 817 feet. This was supported by the documentary evidence. He further testified that the tank is too close to the neighbour to the north of him by 106 feet and 223 feet too close to the property to the south, owned by the MacVicars.

[11] Ms. Benson testified that the smell is “sickening” and that when she walks the dog multiple times per day, the smell makes her nauseous.

[12] Mr. Dekker and John MacVicar testified that the smell is only strong when the manure is being spread. John MacVicar is a neighbour who lives next to the Dekkers to the southeast and on the same side of the road. Mr. MacVicar’s evidence was that his property gets the prevailing winds from the Dekkers and they do not smell anything except when the Dekkers are putting manure on the fields. He stated: “when you live in the country you have manure smells.” On cross-examination he acknowledged that he had a lot of trees behind his house on the side of the Dekkers’ farm that may reduce the smell.

[13] Mr. Dekker acknowledged that his manure tank is not in compliance with OMAFRA’s MDS Guidelines. He explained that the building process involved consultations with OMAFRA and that he had hired someone to provide the nutrient management plan along with the proposed building plan. He stated he received the permits and believed the manure tank and barn addition were in compliance. He explained that he did not know that there was a setback issue until July of 2017, after it was built.

[14] Mr. Dekker entered into evidence as Exhibit 8, an email he was sent from Andrew Barrie, an OMAFRA agent, dated October 16, 2018, that contained odour test results taken by Amadou Thiam, P. Eng. The results contained a statement that “it is higher than the previous sample from last summer (300 OU) but still a good reduction from the base line without any additive > 30,0000 OU”. There was no further information in the email. There was no explanation of the tests performed. Mr. Dekker was able to say the odour test was completed in early September 2018, it was 22 degrees with not much wind. He could not say the direction of the wind.

The Decision

[15] At paragraph 12 of the Decision, the Board set out the five issues for it to determine:

(1) Have the Applicants proven that they are directly affected by a disturbance arising from a practice related to the operation of the Respondents?

(2) If so what is the farm practice?

(3) Is the farm practice related to an agricultural operation as defined in the Act?

(4) If so, is the practice a normal farm practice?

(5) If the practice is not a normal farm practice, should the Board order the Respondents to cease the practice or to modify the practice in such a way to be consistent with a normal farm practice?

[16] The Board accepted the evidence of all of the witnesses who testified and determined that their differences could be reconciled due to different circumstances: Mr. Dekker works close to the barn and tank most of the time and may be desensitized to the smell. Also,there are buildings between the manure tank and the Dekkers’ house. Mr. MacVicar’s house is in a different position with respect to the manure tank than the Benson house and there is a row of manure trees between Mr. MacVicar’s house and the manure tank such that he may be subject to less of the odour.

[17] The e-mail containing the odour test result submitted by Mr. Dekker (Exhibit 8) was assigned no weight, because it was not conducted by someone who had been qualified as an expert, because no parties were able to ask questions of the report’s creator, and because the test was only for a discrete moment in time.

[18] The Board found that the Bensons had proved that they were “directly affected by an odour disturbance arising from a practice related to the operation of the Respondent.” The Board considered other solutions that were discussed in the evidence but noted that none of them would make the location of the manure tank comply with or come closer to complying with the MDS guidelines. The Board went on to conclude that the Dekkers’ manure pit was not a normal farm practice, primarily because its location was significantly non-compliant with the OMAFRA MDS Formulae and ordered that the manure pit be moved to be compliant with those guidelines. The November 30, 2022 Order from the Board required the Appellants to cease using their manure storage tank, and further required that any new or relocated tank shall be either in full compliance with the Ministry guidelines, or within 10 per cent of the guidelines, with additional stipulations.

Relevant Legislation

[19] The Board is governed by the Act, the objectives of which are set out in the preamble, which states as follows:

a. It is desirable to conserve, protect and encourage the development and improvement of agricultural lands for the production of food, fibre and other agricultural or horticultural products.

b. Agricultural activities may include intensive operations that may cause discomfort and inconveniences to those on adjacent lands.

c. Because of the pressures exerted on the agricultural community, it is increasingly difficult for agricultural owners and operators to effectively produce food, fibre and other agricultural or horticultural products.

d. It is in the provincial interest that in agricultural areas, agricultural uses and normal farm practices be promoted and protected in a way that balances the needs of the agricultural community with provincial health, safety and environmental concerns.

[20] “Disturbance” and “Normal Farm Practice” are defined in s.1 of the Act as follows:

Definitions

1(1) In this Act:

“Disturbance” is defined as odour, dust, flies, light, smoke, noise and vibration.

“Normal Farm Practice” means a practice that,

(a) is conducted in a manner consistent with proper and acceptable customs and standards as established and followed by similar agricultural operations under similar circumstances, or

(b) makes use of innovative technology in a manner consistent with proper advanced farm management practices.

[21] Subsections 5(a) and 5(4) of the Act set out the type of application that may be brought by a person claiming a disturbance from an agricultural operation and the orders the Board can make:

5 (1) A person directly affected by a disturbance from an agricultural operation may apply to the Board, in a form acceptable to it, for a determination as to whether the disturbance results from a normal farm practice.

5 (4) After a hearing, the Board shall,

(a) dismiss the application if the Board is of the opinion that the disturbance results from a normal farm practice;

(b) order the farmer to cease the practice causing the disturbance if it is not a normal farm practice; or

(c) order the farmer to modify the practice in the manner set out in the order so as to be consistent with normal farm practice.

Issues

[22] The issues raised by the Dekkers on this appeal can be summarized as:

1. Did the Board properly analyze whether the Bensons were sufficiently disturbed? and

2. Did the Board properly analyze whether the manure tank is a normal farm practice?

Court’s Jurisdiction

[23] Pursuant to s. 8(2) of the Act, the Divisional Court has jurisdiction to hear an appeal from the Normal Farm Practices Review Board:

Appeal

(2) Any party to a hearing under this Act may appeal an order or a decision of the Board on any question of fact, law or jurisdiction to the Divisional Court within 30 days of the making of the order or decision.

Standard of Review:

[24] Although both parties submit that the standard of review is one of reasonableness, as per Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, appellate standards of review apply on a statutory appeal. These standards were set out in Housen v. Nikolaisen, 2002 SCC 33:

• Errors of law are reviewable on the standard of correctness;

• Errors of fact are reviewable on the more deferential standard of palpable and overriding error; and

• Questions of mixed fact and law lie on a spectrum. If the factual and legal aspects cannot be separated, the palpable and overriding error standard applies. If a question of law can be extricated, the correctness standard is applied.

[25] The applicability of these standards to a statutory appeal under s. 8(2) of the Act was confirmed by this court in Dell v. Zeifman Partners Inc., 2020 ONSC 3881, at para. 41.

Analysis

Issue 1: Did the Board properly analyze whether the Bensons were sufficiently disturbed?

The Dekkers’ position

[26] The Dekkers submit that the fact that there is a minor variance with regard to the MDS calculation does not equal a disturbance, let alone an unacceptable normal farm practice. They submit that the calculation is a good indicator of the standard but is not the ultimate determinator. Furthermore, they submit that minor variances are routinely granted.

[27] The Dekkers rely on the words of Ferguson J. in Pyke v. Tri Gro Enterprises Ltd. [1999] O.J. NO.3217 quoted in Virginia Moir v. Omar Kihel-Barbara Dufour – Zahra Kihel, 2021 ONNFPPB 11 at para. 55:

“…With respect to the severity of the interference, it is not actionable if it is a substantial interference only because of the plaintiffs’ special sensibilities. With respect to the character of the neighbourhood, the court should consider the zoning, whether the defendant’s conduct changed the character of the neighborhood and the reactions of other persons in the neighbourhood.”

[28] The Dekkers submit that the Board failed to consider and give weight to his evidence and that of Mr. MacVicar who testified that there was no smell that occurred at his property from the Dekkers’ farm and that when he did smell manure it was from a pig barn, not the Dekkers’ farm. The Dekkers point out that the Bensons provided no evidence of other persons in the neighbourhood being affected by the odour.

[29] The Dekkers argue that there was palpable and overriding error in the Decision in two instances:

1. the Board misstated Mr. Dekker’s testimony in paragraph 24 of the Decision where it finds that his evidence was that the tank was 48 metres from the Benson residence rather than what he correctly testified to which was that the tank was 200.18 metres from the Benson residence; and

2. the Board failed to wrestle with the inconsistencies in the witnesses’ evidence by finding that the witnesses’ conflicting evidence about the odour could be reconciled by suppositions or speculations for which there is no evidence (eg. Mr. Dekker does not notice the odour because he is desensitized to the smell; other outbuildings on the Dekker property may block some of the odour; Mr. MacVicar has a row of trees between his residence and the Benson manure tank which explains the difference in perception of the odour).

[30] The Dekkers argue that the Board should have found that the evidence of Mr. Dekker and Mr. MacVicar was credible and that of Mr. Benson was not (Mr. Benson conceded on cross-examination that he did not always have to keep the windows closed which had been his evidence in direct examination).

The Bensons’ position

[31] The Bensons submit that it was open to the Board to accept the unrefuted evidence of the Bensons that they are directly affected by an odour disturbance, arising from the Dekkers’ manure tank. It cannot be said that the Board disregarded the evidence of the Dekkers and Mr. MacVicar— the Board determined that the differences in the evidence could be reconciled due to different circumstances.

The Board properly analyzed whether the Bensons were sufficiently disturbed

[32] The Court of Appeal has stated with respect to the Normal Farm Practices Board that “the Board’s expertise favours a standard of deference on matters within its jurisdiction.”(Hill and Hill Farms Ltd. v. Bluewater (Municipality) (“Hill”), 2006 31802 (ON CA), 82 O.R. (3d) 505) at para. 38).

[33] With respect to the Dekkers’ argument that the error in paragraph 24 of the Decision demonstrates palpable and overriding error, it is clear from paragraph 36 in the Analysis and Findings part of the Decision that the Board correctly understood that the manure pit is not in compliance with the OMAFRA’s MDS Guidelines because it is 160 feet too close to the Benson’s residence. Stating Mr. Dekker’s evidence inaccurately in paragraph 24 is not a palpable and overriding error.

[34] There was no palpable and overriding error in the Board applying its expertise in finding explanations for the witnesses’ conflicting evidence about the odour. It is not the role of this court to reweigh and reassess the evidence before the Board. (Canada (CHRC) v. Canada (A.G.), 2019 SCC 31).

[35] In analyzing whether the Bensons were directly affected by a disturbance arising from a practice related to the Dekkers’ operation, the Board found:

43(1) The Applicant’s have proven that they are directly affected by an odour disturbance arising from a practice related to the operation of the Respondent. For the reasons outlined above the odour test has been given very little weight. The differences in evidence between the Bensons, Mr. Dekker and Mr. MacVicar can be reconciled as outlined above. The Benson’s evidence regarding the strong odour they smell is unrefuted as no one else spoke to the conditions near their house or on their property for much of the spring and summer. There has been no evidence to refute their testimony. The Board accepts that the strong manure odour they smell for much of the spring and summer is a disturbance related to the dairy cow operation of the Respondent.

[36] The Board found that the farm practice in question is the Dekkers’ top loading manure tank and its location. It held that the farm practice is clearly related to the Dekkers’ dairy farm operation. The manure pit is used to store all the manure from the dairy cows in the barn beside the manure pit.

[37] The Board concluded as it was entitled to do on the evidence before it, that the Bensons had proven that they were affected by an odour disturbance. The Board made no reference to the MDS Formulae in its analysis of the issue of the disturbance and does not conflate those Formulae with the question of whether the Bensons suffered a disturbance. The Board specifically found that not all situations of noncompliance with OMAFRA MDS Guidelines will result in a finding that there is not a normal farm practice.

[38] There is no palpable and overriding error. The evidence of the witnesses who were situated differently was not necessarily inconsistent. It was open to the Board to find that the Bensons had proven that they are directly affected by an odour disturbance arising from when the Dekkers built their manure tank.

Email containing the odour test

[39] Although counsel for the Dekkers did not address this issue in his oral submissions at the hearing of the appeal until his reply submissions, the Dekkers submitted in their factum that the smell test was conducted by an OMAFRA agent and was the only numerical evidence provided to the Board for assessing the smell. The test result found that the smell had dropped by nearly 30,000 units since Mr. Dekker had implemented various controls to reduce the smell. This test was conducted during the months that the Bensons submitted the smell was at its worst.

[40] The Dekkers submitted in their factum that the Board erred in deciding not to accord the test any weight. This was despite the Rules of Practice and Procedure of the Board[^1] which allow for a slightly relaxed interpretation of the rules of evidence.

[41] In regard to the email containing the odour test result submitted by Mr. Dekker the Board found:

[40] Mr. Dekker entered into evidence an email setting out an odour test that was conducted. This was deemed admissible evidence by the Board as it was relevant, but the Board stated it would be given very little weight for a number of reasons. The party who conducted the test did not attend and was not qualified as an expert in the area of conducting these types of odour tests. There was no opportunity for the Applicant or Board to ask questions regarding the nature of this test and the weather and wind conditions or wind direction at the time of the test. Mr. Dekker provided some evidence in this regard but not enough to increase the weight of this evidence as he does not have expertise in this area. This was also such a limited piece of evidence, a single test on one day as opposed to a series of tests over a several month time period. For all these reasons the Board has given no weight to this evidence.

[42] In Corporation of the Town of New Tecumseth v. Sneig, 2018 ONSC 634, a 2018 appeal from the Board to this court, the appellant raised the issue that the Board had improperly weighed the evidence and primarily the expert evidence before it. The court concluded at paragraph 20 that “the Board was in the best position to evaluate and determine the weight to give the evidence provided not only by [the expert witness] but more generally.”

[43] The Board in this case gave adequate reasons and did not err in giving no weight to the email containing the odour test.

Issue 2: Did the Board properly analyze whether the manure pit is a normal farm practice?

[44] The Dekkers submit that they only performed Normal Farm Practices. They submit that there is nothing unique about their manure pit, and that they did everything correctly and by the book, obtaining approvals by the Municipality having authority, Wellington North.

[45] The Bensons reference Section 9(1) of the Act which says that the Board’s decisions under this Act must be consistent with the Minister’s directives, guidelines or policy statements:

Guidelines, etc.

9 (1) The Minister may issue directives, guidelines or policy statements in relation to agricultural operations or normal farm practices and the Board’s decisions under this Act must be consistent with these directives, guidelines or policy statements.

[46] The Bensons submit that the MDS Formulae Implementation Guidelines is a publication of OMAFRA, and is thus binding. They reference Hill and Hill Farms Ltd. v. Bluewater (Municipality) (“Hill”) (2006), 2006 31802 (ON CA), 82 O.R. (3d) 505 (C.A) in support of this. They submit that the Board’s finding is correct that because the manure tank is significantly non-compliant with the MDS Formulae, it cannot be a normal farm practice. In the alternative, in the event that the Board does have jurisdiction to make an order that is not in compliance with the MDS Formulae, the Bensons submit that the Board’s decision was reasonable, especially in light of the significant 166 foot deviation from the MDS Formulae.

[47] The Board found:

[43] 4) The Board accepts that the practice of having a manure pit is accepted as a normal farm practice and part of a dairy farm agricultural operation. The real issue is the location of the manure pit and whether that is a normal farm practice. The noncompliance with the MDS guidelines by a significant distance is the determining factor for the Board. The noncompliance is not a matter of a few feet, it is a matter of 166 feet. This is a considerable distance that the manure tank is too close to the Benson’s residence as well as being too close to other neighbouring residences. The Board finds the location of the manure tank is not a normal farm practice. The Board is not saying that all situations of noncompliance with OMAFRA MDS Guidelines will result in a similar ruling, each hearing is determined on the specific facts. The fact this manure tank is too close by a substantial distance of 166 feet is the determining factor.

[48] The Board correctly analyzed the five issues required to be determined as set out above. The Board’s reasons were “clearly and cogently” explained and grounded in the evidence before it. There is no error. The appeal is dismissed.

Costs

[49] The Bensons as the successful parties shall be entitled to costs in the agreed upon amount of $5000.00.

Backhouse J.

I agree _______________________________

D.L. Corbett J.

I agree _________________________________

O’Brien J.

Released: March 8, 2024

CITATION: Benson v. Dekker, 2024 ONSC 1385

DIVISIONAL COURT FILE NO.: 02/23

DATE: 20240308

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Backhouse, D.L. Corbett, O’Brien JJ.

BETWEEN:

Kent Benson and Agnes Benson

Applicants (Respondents in Appeal)

– and –

Karen Dekker and Rien Dekker

Respondents (Appellants)

REASONS FOR DECISION

Released: March 8, 2024

[^1]: Normal Farm Practices Protection Board Rules of Practice and Procedure, Documents as Evidence 40.(1) and (2).